P JAWAHAR Vs. S S PILLAI

JUDGEMENT

(1.) The petitioner herein is the accused in C.C. No. 5525 of 1991 on the file of XIV Metropolitan Magistrate, Egmore, Madras. On 7.1.1991 he issued a cheque for Rs. 6,500 bearing No. 102627 to the respondent drawn on Lakshmi Vilas Bank Limited Mount Road Branch, Madras in settlement of a prior loan. On 5.2.1991 the respondent presented the, cheque for encashment. However, on 8.2.1991 it was returned unpaid with the endorsement refer to drawer. Thereupon, he sent a notice to the petitioner on 14.2.1991 calling upon him to pay the cheque amount. Though the petitioner received the notice on 15.2.1991, he did not comply with the demand. Thereupon the respondent preferred a complaint in the court of XIV Metropolitan Magistrate, Egmore, Madras and the same was taken on file as C.C. No. 2496 of 1991. On 9.5.1989 the complaint was dismissed since the complainant was absent. Later on the respondent presented the cheque for the second time on 14.5.1991. But the cheque was again returned unpaid with the endorsement not arranged for on-15.5.1991. The complainant issued the statutory notice under Section 138 of Negotiable Instruments Act on 16.5.1991. The petitioner received the notice and failed to make any arrangement to remit the money. The postal acknowledgement which pws the signature of the petitioner for having received the notice does not mention the date of receipt of the notice. And on 6.6.1991 the complaint preferred by the respondent was taken on file in the Court of XIV Metropolitan Magistrate, Egmore, Madras as C.C. No. 5521 of 1991. The present application is to quash the said complaint under 5.482 of Cr. P.C.

(2.) Learned counsel for the petitioner submits that the second presentation by the respondent of the cheque on 14.5.199 1 was without his knowledge and consent since the complainant was absent on 9.5.1991 during the hearing of the earlier complaint, the Magistrate had acquitted the present petitioner under Section 256, Cr. P.C. The respondent herein neither challenged the said order of acquittal nor made any endeavour to restore the complaint on file. So the order of acquittal made on 9.5.1991 has become final. And Section 300, Cr. P.C. is a bar to the maintainability of the second complaint. That section provides that a person who has once been tried by a Coon of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.

(3.) In Maqbool Hussain v. State of Bombay, it is held that Article 20(2) of the Constitution incorporates within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribes it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. In Mohd. Safi v. State of West Bengal, the Apex Coon has pointed out that the provisions of Section 403, Cr. P.C. are based upon the general principle of autrefois acquit recognised by the English Courts. The principle on which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle has now been incorporated in Article 20 of the Constitution.